Merillat Industries, Inc.

Trademark Trial and Appeal Board

Mar 30, 2004

No. 76357515 (T.T.A.B. Mar. 30, 2004)

Mailed: 30 MAR 2004
Paper No. 9
AD
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
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In re Merillat Industries, Inc.
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Serial No. 76357515
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Edgar A. Zarins, Esq. for Merillat Industries, Inc.
Wendy B Goodman, Trademark Examining Attorney, Law Office
103 (Michael Hamilton, Managing Attorney).
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Before Hanak, Hohein and Drost, Administrative Trademark
Judges.
Opinion by Drost, Administrative Trademark Judge:
On January 11, 2002, Merillat Industries, Inc.
(applicant) applied to register the mark LANDIS, in typed
form, for goods ultimately identified as “cabinetry,
namely, kitchen and bathroom cabinets and cabinet doors” in
International Class 20.1
The examining attorney refused to register applicant’s
mark on the ground that the mark is primarily merely a
1 Serial No. 76357515. The application is based on applicant’s
allegation of a bona fide intention to use the mark in commerce.
THIS DISPOSITION IS
NOT CITABLE AS
PRECEDENT OF THE TTAB
Ser No. 76357515
2
surname under Section 2(e)(4) of the Trademark Act. 15
U.S.C. § 1052(e)(4).
After the examining attorney made the refusal final,
applicant filed a notice of appeal.
In order to determine whether a term is primarily
merely a surname, we must determine the impact the term has
or would have on the purchasing public. “[I]t is that
impact or impression which should be evaluated in
determining whether or not the primary significance of a
word when applied to a product is a surname significance.
If it is, and it is only that, then it is primarily merely
a surname.” In re Harris-Intertype Corp., 518 F.2d 629,
186 USPQ 238, 239 (CCPA 1975), quoting, Ex parte Rivera
Watch Corp., 106 USPQ 145 (Comm’r Pat. 1955) (emphasis in
original).
“Among the factors to be considered in determining
whether a term is primarily merely a surname are the
following: (i) whether the surname is rare; (ii) whether
anyone connected with applicant has the involved term as a
surname; (iii) whether the term has any other recognized
meaning; and (iv) whether the term has the “look and feel”
Ser No. 76357515
3
of a surname.” In re United Distillers plc, 56 USPQ2d
1220, 1221 (TTAB 2000).2
On the first factor, the examining attorney introduced
the following evidence. First, the examining attorney has
made of record a printout from the “PowerFinder” database
that shows that there are 8,283 residential telephone
number listings for the name Landis. Attached to the
printout were 100 listings with the last name Landis and
the first name beginning with “A” along with the respective
phone numbers. Next, the examining attorney included a
sample of more than 30 printouts from the NEXIS database
that shows use of Landis as a surname.3 These stories refer
to a quarterback named Brad Landis (Story 1), an obituary
for Tom Landis (Story 3), a webcaster named David Landis
(Story 4), a high school golf coach named Warren Landis
(Story 6), a state lawmaker identified only as Landis
(Story 7), a college assistant coach named Ben Landis
(Story 8), and an opera company member identified as Jim
Landis (Story 12). The examining attorney argues that this
2 If the mark is depicted in stylized form, another factor we
consider is the distinctiveness of the stylization. If the
stylization is “distinctive enough, this would cause the mark not
to be perceived as primarily merely a surname.” See In re
Benthin Management GmbH, 37 USPQ2d 1332, 1334 (TTAB 1995).
Inasmuch as the mark in this case is depicted in typed form in an
intent-to-use application, this factor is not applicable.
3 The NEXIS printout indicated that there were more than 39,000
articles involving the term Landis.
Ser No. 76357515
4
evidence supports the conclusion that LANDIS is not a rare
surname. We agree. It is clear that many people in the
United States have the surname Landis, and that it is not a
rare surname.
The second factor we consider is whether anyone
associated with applicant has the involved term as a
surname. No inquiry was made on this point and no evidence
was submitted, therefore, this factor does not favor either
applicant’s or the examining attorney’s position.
The third factor we discuss is whether there is any
other recognized meaning of the term. The examining
attorney has submitted a page from a dictionary to
demonstrate that the term Landis has no dictionary meaning.
Applicant has not pointed to any other meaning the term
Landis may have other than to argue that it will serve to
identify applicant’s goods. Therefore, this factor
supports the examining attorney’s position that the term
Landis is primarily merely a surname. We add that even if
there were evidence that a term has some geographic
significance, which there is not in this case, that would
not necessarily demonstrate that the term was not primarily
merely a surname. See Harris-Intertype, 186 USPQ at 239
(evidence that “Harris” was the name of cities in Arizona,
Kansas, Minnesota, Missouri, and Oklahoma and counties in
Ser No. 76357515
5
Georgia and Texas did not prevent term from being primarily
merely a surname).
The final factor to consider is whether the term has
the “look and feel” of a surname. Applicant’s arguments
are concentrated on this point. “While applicant does not
contend that the mark cannot operate as a surname, the
primary significance to consumers is as an identifier of
the goods. The mark does not immediately involve the
connotation of a surname to the consuming public. While
almost any term can be found as a surname in an electronic
phone list, the mark LANDIS does not have the look and feel
of a surname. Consumers would consider the mark nothing
more than a fanciful identifier for applicant’s cabinets.”
Applicant’s Brief at 2.
The examining attorney disagrees and argues that the
telephone listings and the NEXIS printouts support her
conclusion that the term has the “look and feel” of a
surname. While there is obviously some subjectivity as to
whether a term has the “look and feel” of a surname, we
conclude that this factor favors the term Landis being
viewed as a surname. The term does not look like an
arbitrary term and it is not a rare surname. When
prospective purchasers encounter the term, it would likely
be viewed as a surname.
Ser No. 76357515
6
When we consider that thousands of people in the
United States have the surname Landis, that there are no
other recognized meaning for the term, and that the term
looks like a surname, we conclude that the examining
attorney has meet her burden of establishing a prima facie
case that the term LANDIS is primarily merely a surname,
which applicant has not rebutted.
Decision: The refusal to register applicant’s mark on
the ground that it is primarily merely a surname is
affirmed.